499 U.S. 340
FEIST PUBLICATIONS, INC.,
RURAL TELEPHONE SERVICE CO., INC.
Argued January 9, 1991
Decided March 27, 1991
(The syllabus is not the opinion of the Court but has been prepared by
the Reporter of Decisions for the convenience of the reader)
Respondent Rural Telephone Service Company, Inc., is a
certified public utility providing telephone service to several
communities in Kansas. Pursuant to state regulation, Rural publishes a
typical telephone directory, consisting of white pages and yellow
pages. It obtains data for the directory from subscribers, who must
provide their names and addresses to obtain telephone service.
Petitioner Feist Publications, Inc., is a publishing company that
specializes in area-wide telephone directories covering a much larger
geographic range than directories such as Rural's. When Rural refused
to license its white pages listings toa Feist for a directory covering
11 different telephone service areas, Feist extracted the listings it
needed from Rural's directory without Rural's consent. Although Feist
altered many of Rural's listings, several were identical to listings in
Rural's white pages. The District Court granted summary judgment to
Rural in its copyright infringement suit, holding that telephone
directories are copyrightable. The Court of Appeals affirmed.
Rural's white pages are not entitled to copyright, and
therefore Feist's use of them does not constitute infringement. Pp.
(a) Article I, s 8, cl. 8, of the Constitution mandates
originality as a prerequisite for copyright protection. The
constitutional requirement necessitates independent creation plus a
modicum of creativity. Since facts do not owe their origin to an act of
authorship, they are not original and, thus, are not copyrightable.
Although a compilation of facts may possess the requisite originality
because the author typically chooses which facts to include, in what
order to place them, and how to arrange the data so that readers may
use them effectively, copyright protection extends only to those
components of the work that are original to the author, not to the
facts themselves. This fact/expression dichotomy severely limits the
scope of protection in fact-based works. Pp. 1287-1290.
(b) The Copyright Act of 1976 and its predecessor, the
Copyright Act of 1909, leave no doubt that originality is the
touchstone of copyright protection in directories and other fact-based
works. The 1976 Act explains that copyright extends to "original works
of authorship," 17 U.S.C. s 102(a), and that there can be no copyright
in facts, s 102(b). A compilation is not copyrightable per se, but is
copyrightable only if its facts have been "selected, coordinated, or
arranged in such a way that the resulting work as a whole constitutes
an original work of authorship." s 101. Thus, the statute envisions
that some ways of selecting, coordinating, and arranging data are not
sufficiently original to trigger copyright protection. Even a
compilation that is copyrightable receives only limited protection, for
the copyright does not extend to facts contained in the compilation. s
103(b). Lower courts that adopted a "sweat of the brow" or "industrious
collection" test--which extended a compilation's copyright protection
beyond selection and arrangement to the facts themselves--misconstrued
the 1909 Act and eschewed the fundamental axiom of copyright law that
no one may copyright facts or ideas. Pp. 1290-1295.
(c) Rural's white pages do not meet the constitutional
or statutory requirements for copyright protection. While Rural has a
valid copyright in the directory as a whole because it contains some
forward text and some original material in the yellow pages, there is
nothing original in Rural's white pages. The raw data are
uncopyrightable facts, and the way in which Rural selected,
coordinated, and arranged those facts is not original in any way.
Rural's selection of listings--subscribers' names, towns, and telephone
numbers--could not be more obvious and lacks the modicum of creativity
necessary to transform mere selection into copyrightable expression. In
fact, it is plausible to conclude that Rural did not truly "select" to
publish its subscribers' names and telephone numbers, since it was
required to do so by state law. Moreover, there is nothing remotely
creative about arranging names alphabetically in a white pages
directory. It is an age-old practice, firmly rooted in tradition and so
commonplace that it has come to be expected as a matter of course. Pp.
916 F.2d 718 (CA 10 1990), reversed.
O'CONNOR J., delivered the opinion of the Court, in
which REHNQUIST, C.J., and WHITE, MARSHALL, STEVENS, SCALIA, KENNEDY,
and SOUTER, JJ., joined. BLACKMUN, J., concurred in the judgment.
Kyler Knobbe, Cimarron, Kan., for petitioner. James M.
Caplinger, Jr., Topeka, Kan., for respondent.
Justice O'CONNOR delivered THE
OPINION OF THE COURT.
This case requires us to clarify the extent of copyright
protection available to telephone directory white pages.
Rural Telephone Service Company, Inc., is a certified
public utility that provides telephone service to several communities
in northwest Kansas. It is subject to a state regulation that requires
all telephone companies operating in Kansas to issue annually an
updated telephone directory. Accordingly, as a condition of its
monopoly franchise, Rural publishes a typical telephone directory,
consisting of white pages and yellow pages. The white pages list in
alphabetical order the names of Rural's subscribers, together with
their towns and telephone numbers. The yellow pages list Rural's
business subscribers alphabetically by category and feature classified
advertisements of various sizes. Rural distributes its directory free
of charge to its subscribers, but earns revenue by selling yellow pages
Feist Publications, Inc., is a publishing company that
specializes in area- wide telephone directories. Unlike a typical
directory, which covers only a particular calling area, Feist's
area-wide directories cover a much larger geographical range, reducing
the need to call directory assistance or consult multiple directories.
The Feist directory that is the subject of this litigation covers 11
different telephone service areas in 15 counties and contains 46,878
white pages listings--compared to Rural's approximately 7,700 listings.
Like Rural's directory, Feist's is distributed free of charge and
includes both white pages and yellow pages. Feist and Rural compete
vigorously for yellow pages advertising.
As the sole provider of telephone service in its service
area, Rural obtains subscriber information quite easily. Persons
desiring telephone service must apply to Rural and provide their names
and addresses; Rural then assigns them a telephone number. Feist is not
a telephone company, let alone one with monopoly status, and therefore
lacks independent access to any subscriber information. To obtain white
pages listings for its area-wide directory, Feist approached each of
the 11 telephone companies operating in northwest Kansas and offered to
pay for the right to use its white pages listings.
Of the 11 telephone companies, only Rural refused to
license its listings to Feist. Rural's refusal created a problem for
Feist, as omitting these listings would have left a gaping hole in its
area-wide directory, rendering it less attractive to potential yellow
pages advertisers. In a decision subsequent to that which we review
here, the District Court determined that this was precisely the reason
Rural refused to license its listings. The refusal was motivated by an
unlawful purpose "to extend its monopoly in telephone service to a
monopoly in yellow pages advertising." Rural Telephone Service Co. v.
Feist Publications, Inc., 737 F.Supp. 610, 622 (Kan.1990).
Unable to license Rural's white pages listings, Feist
used them without Rural's consent. Feist began by removing several
thousand listings that fell outside the geographic range of its
area-wide directory, then hired personnel to investigate the 4,935 that
remained. These employees verified the data reported by Rural and
sought to obtain additional information. As a result, a typical Feist
listing includes the individual's street address; most of Rural's
listings do not. Notwithstanding these additions, however, 1,309 of the
46,878 listings in Feist's 1983 directory were identical to listings in
Rural's 1982-1983 white pages. App. 54 (P 15-16), 57. Four of these
were fictitious listings that Rural had inserted into its directory to
Rural sued for copyright infringement in the District
Court for the District of Kansas taking the position that Feist, in
compiling its own directory, could not use the information contained in
Rural's white pages. Rural asserted that Feist's employees were obliged
to travel door-to-door or conduct a telephone survey to discover the
same information for themselves. Feist responded that such efforts were
economically impractical and, in any event, unnecessary because the
information copied was beyond the scope of copyright protection. The
District Court granted summary judgment to Rural, explaining that
"[c]ourts have consistently held that telephone directories are
copyrightable" and citing a string of lower court decisions. 663
F.Supp. 214, 218 (1987). In an unpublished opinion, the Court of
Appeals for the Tenth Circuit affirmed "for substantially the reasons
given by the district court." App. to Pet. for Cert. 4a, judgt. order
reported at 916 F.2d 718 (1990). We granted certiorari, 498 U.S. 808,
111 S.Ct. 40, 112 L.Ed.2d 17 (1990), to determine whether the copyright
in Rural's directory protects the names, towns, and telephone numbers
copied by Feist.
This case concerns the interaction of two
well-established propositions. The first is that facts are not
copyrightable; the other, that compilations of facts generally are.
Each of these propositions possesses an impeccable pedigree. That there
can be no valid copyright in facts is universally understood. The most
fundamental axiom of copyright law is that "[n]o author may copyright
his ideas or the facts he narrates." Harper & Row, Publishers,
Inc. v. Nation Enterprises, 471 U.S. 539, 556, 105 S.Ct. 2218, 2228, 85
L.Ed.2d 588 (1985). Rural wisely concedes this point, noting in its
brief that "[f]acts and discoveries, of course, are not themselves
subject to copyright protection." Brief for Respondent 24. At the same
time, however, it is beyond dispute that compilations of facts are
within the subject matter of copyright. Compilations were expressly
mentioned in the Copyright Act of 1909, and again in the Copyright Act
There is an undeniable tension between these two
propositions. Many compilations consist of nothing but raw data--i.e.,
wholly factual information not accompanied by any original written
expression. On what basis may one claim a copyright in such a work?
Common sense tells us that 100 uncopyrightable facts do not magically
change their status when gathered together in one place. Yet copyright
law seems to contemplate that compilations that consist exclusively of
facts are potentially within its scope.
The key to resolving the tension lies in understanding
why facts are not copyrightable. The sine qua non of copyright is
originality. To qualify for copyright protection, a work must be
original to the author. See: Harper & Row, supra, at 547-549,
105 S.Ct., at 2223-2224. Original, as the term is used in copyright,
means only that the work was independently created by the author (as
opposed to copied from other works), and that it possesses at least
some minimal degree of creativity. 1 M. Nimmer & D. Nimmer,
Copyright ss 2.01[A], [B] (1990) (hereinafter Nimmer). To be sure, the
requisite level of creativity is extremely low; even a slight amount
will suffice. The vast majority of works make the grade quite easily,
as they possess some creative spark, "no matter how crude, humble or
obvious" it might be. Id., s 1.08[C] . Originality does not signify
novelty; a work may be original even though it closely resembles other
works so long as the similarity is fortuitous, not the result of
copying. To illustrate, assume that two poets, each ignorant of the
other, compose identical poems. Neither work is novel, yet both are
original and, hence, copyrightable. See: Sheldon v. Metro- Goldwyn
Pictures Corp., 81 F.2d 49, 54 (CA2 1936).
Originality is a constitutional requirement. The source
of Congress' power to enact copyright laws is Article I, s 8, cl. 8, of
the Constitution, which authorizes Congress to "secur[e] for limited
Times to Authors ... the exclusive Right to their respective Writings."
In two decisions from the late 19th century-- The Trade-Mark Cases, 100
U.S. 82, 25 L.Ed. 550 (1879); and Burrow-Giles Lithographic Co. v.
Sarony, 111 U.S. 53, 4 S.Ct. 279, 28 L.Ed. 349 (1884)--this Court
defined the crucial terms "authors" and "writings." In so doing, the
Court made it unmistakably clear that these terms presuppose a degree
In The Trade-Mark Cases, the Court addressed the
constitutional scope of "writings." For a particular work to be
classified "under the head of writings of authors," the Court
determined, "originality is required." 100 U.S., at 94. The Court
explained that originality requires independent creation plus a modicum
of creativity: "[W]hile the word writings may be liberally construed,
as it has been, to include original designs for engraving, prints,
&c., it is only such as are original, and are founded in the
creative powers of the mind. The writings which are to be protected are
the fruits of intellectual labor, embodied in the form of books,
prints, engravings, and the like." Ibid.
In Burrow-Giles, the Court distilled the same
requirement from the Constitution's use of the word "authors." The
Court defined "author," in a constitutional sense, to mean "he to whom
anything owes its origin; originator; maker." 111 U.S., at 58, 4 S.Ct.,
at 281 (internal quotation marks omitted). As in The Trade-Mark Cases,
the Court emphasized the creative component of originality. It
described copyright as being limited to "original intellectual
conceptions of the author," 111 U.S., at 58, 4 S.Ct., at 281, and
stressed the importance of requiring an author who accuses another of
infringement to prove "the existence of those facts of originality, of
intellectual production, of thought, and conception." Id., at 59-60, 4
S.Ct., at 281-282.
The originality requirement articulated in The
Trade-Mark Cases and Burrow-Giles remains the touchstone of copyright
protection today. See: Goldstein v. California, 412 U.S. 546, 561-562,
93 S.Ct. 2303, 2312, 37 L.Ed.2d 163 (1973). It is the very "premise of
copyright law." Miller v. Universal City Studios, Inc., 650 F.2d 1365,
1368 (CA5 1981). Leading scholars agree on this point. As one pair of
commentators succinctly puts it: "The originality requirement is
constitutionally mandated for all works." Patterson & Joyce,
Monopolizing the Law: The Scope of Copyright Protection for Law Reports
and Statutory Compilations, 36 UCLA L.Rev. 719, 763, n. 155 (1989)
(hereinafter Patterson & Joyce). Accord, id., at 759-760, and
n. 140; Nimmer s 1.06[A] ("[O]riginality is a statutory as well as a
constitutional requirement"); id., s 1.08[C] ("[A] modicum of
intellectual labor ... clearly constitutes an essential constitutional
It is this bedrock principle of copyright that mandates
the law's seemingly disparate treatment of facts and factual
compilations. "No one may claim
originality as to facts." Id., s 2.11[A], p. 2-157. This is because
facts do not owe their origin to an act of authorship. The distinction
is one between creation and discovery: The first person to find and
report a particular fact has not created the fact; he or she has merely
discovered its existence. To borrow from Burrow-Giles,
one who discovers a fact is not its "maker" or "originator." 111 U.S.,
at 58, 4 S.Ct., at 281. "The discoverer merely finds and records."
Nimmer s 2.03[E]. Census takers, for example, do not "create" the
population figures that emerge from their efforts; in a sense, they
copy these figures from the world around them. Denicola, Copyright in
Collections of Facts: A Theory for the Protection of Nonfiction
Literary Works, 81 Colum.L.Rev. 516, 525 (1981) (hereinafter Denicola).
Census data therefore do not trigger copyright because these data are
not "original" in the constitutional sense. Nimmer s 2.03[E]. The same
is true of all facts--scientific, historical, biographical, and news of
the day. "[T]hey may not be copyrighted and are part of the public
domain available to every person." Miller, supra, at 1369.
Factual compilations, on the other hand, may possess the
requisite originality. The compilation author typically chooses which
facts to include, in what order to place them, and how to arrange the
collected data so that they may be used effectively by readers. These
choices as to selection and arrangement, so long as they are made
independently by the compiler and entail a minimal degree of
creativity, are sufficiently original that Congress may protect such
compilations through the copyright laws. Nimmer ss 2.11[D], 3.03;
Denicola 523, n. 38. Thus, even a directory that contains absolutely no
protectible written expression, only facts, meets the constitutional
minimum for copyright protection if it features an original selection
or arrangement. See: Harper & Row, 471 U.S., at 547, 105 S.Ct.,
at 2223. Accord, Nimmer s 3.03.
This protection is subject to an important limitation.
The mere fact that a work is copyrighted does not mean that every
element of the work may be protected. Originality remains the sine qua
non of copyright; accordingly, copyright protection may extend only to
those components of a work that are original to the author. Patterson
& Joyce 800-802; Ginsburg, Creation and Commercial Value:
Copyright Protection of Works of Information, 90 Colum.L.Rev. 1865,
1868, and n. 12 (1990) (hereinafter Ginsburg). Thus, if the compilation
author clothes facts with an original collocation of words, he or she
may be able to claim a copyright in this written expression. Others may
copy the underlying facts from the publication, but not the precise
words used to present them. In Harper & Row, for example, we
explained that President Ford could not prevent others from copying
bare historical facts from his autobiography, see: 471 U.S., at
556-557, 105 S.Ct., at 2228-2229, but that he could prevent others from
copying his "subjective descriptions and portraits of public figures."
Id., at 563, 105 S.Ct., at 2232. Where the compilation author adds no
written expression but rather lets the facts speak for themselves, the
expressive element is more elusive. The only conceivable expression is
the manner in which the compiler has selected and arranged the facts.
Thus, if the selection and arrangement are original, these elements of
the work are eligible for copyright protection. See Patry, Copyright in
Compilations of Facts (or Why the "White Pages" Are Not Copyrightable),
12 Com. & Law 37, 64 (Dec. 1990) (hereinafter Patry). No matter
how original the format, however, the facts themselves do not become
original through association. See Patterson & Joyce 776.
means that the copyright in a factual compilation is thin.
Notwithstanding a valid copyright, a subsequent compiler remains free
to use the facts contained in another's publication to aid in preparing
a competing work, so long as the competing work does not feature the
same selection and arrangement. As one commentator explains it: "[N]o matter how much original authorship
the work displays, the facts and ideas it exposes are free for the
taking.... [T]he very same facts and ideas may be divorced from the
context imposed by the author, and restated or reshuffled by second
comers, even if the author was the first to discover the facts or to
propose the ideas." Ginsburg 1868.
It may seem unfair that much of the fruit of the
compiler's labor may be used by others without compensation. As Justice
Brennan has correctly observed, however, this is not "some unforeseen
byproduct of a statutory scheme." Harper & Row, 471 U.S., at
589, 105 S.Ct., at 2245 (dissenting opinion). It is, rather, "the
essence of copyright," ibid., and a constitutional requirement. The
primary objective of copyright is not to reward the labor of authors,
but "[t]o promote the Progress of Science and useful Arts." Art. I, s
8, cl. 8. Accord, Twentieth Century Music Corp. v. Aiken, 422 U.S. 151,
156, 95 S.Ct. 2040, 2044, 45 L.Ed.2d 84 (1975). To this end, copyright
assures authors the right to their original expression, but encourages
others to build freely upon the ideas and information conveyed by a
work. Harper & Row, supra, 471 U.S., at 556-557, 105 S.Ct., at
2228- 2229. This principle, known as the idea/expression or
fact/expression dichotomy, applies to all works of authorship. As
applied to a factual compilation, assuming the absence of original
written expression, only the compiler's selection and arrangement may
be protected; the raw facts may be copied at will. This result is
neither unfair nor unfortunate. It is the means by which copyright
advances the progress of science and art.
This Court has long recognized that the fact/expression
dichotomy limits severely the scope of protection in fact-based works.
More than a century ago, the Court observed: "The very object of
publishing a book on science or the useful arts is to communicate to
the world the useful knowledge which it contains. But this object would
be frustrated if the knowledge could not be used without incurring the
guilt of piracy of the book." Baker v. Selden, 101 U.S. 99, 103, 25
L.Ed. 841 (1880). We reiterated this point in Harper & Row:
"[N]o author may copyright facts or ideas. The
copyright is limited to those aspects of the work--termed
'expression'--that display the stamp of the author's originality.
"[C]opyright does not prevent subsequent users from copying from a
prior author's work those constituent elements that are not
original--for example ... facts, or materials in the public domain--as
long as such use does not unfairly appropriate the author's original
contributions." 471 U.S., at 547-548, 105 S.Ct., at 2223-2224 (citation
This, then, resolves the doctrinal tension: Copyright
treats facts and factual compilations in a wholly consistent manner.
Facts, whether alone or as part of a compilation, are not original and
therefore may not be copyrighted. A factual compilation is eligible for
copyright if it features an original selection or arrangement of facts,
but the copyright is limited to the particular selection or
arrangement. In no event may copyright extend to the facts themselves.
As we have explained, originality is a constitutionally
mandated prerequisite for copyright protection. The Court's decisions
announcing this rule predate the Copyright Act of 1909, but ambiguous
language in the 1909 Act caused some lower courts temporarily to lose
sight of this requirement.
The 1909 Act embodied the originality requirement, but
not as clearly as it might have. See Nimmer s 2.01. The subject matter
of copyright was set out in ss 3 and 4 of the Act. Section 4 stated
that copyright was available to "all the writings of an author." 35
Stat. 1076. By using the words "writings" and "author" -- the same
words used in Article I, s 8, of the Constitution and defined by the
Court in The Trade-Mark Cases and Burrow- Giles -- the statute
necessarily incorporated the originality requirement articulated in the
Court's decisions. It did so implicitly, however, thereby leaving room
Section 3 was similarly ambiguous. It stated that the
copyright in a work protected only "the copyrightable component parts
of the work." It thus stated an important copyright principle, but
failed to identify the specific characteristic--originality--that
determined which component parts of a work were copyrightable and which
Most courts construed the 1909 Act correctly,
notwithstanding the less-than- perfect statutory language. They
understood from this Court's decisions that there could be no copyright
without originality. See Patterson & Joyce 760- 761. As
explained in the Nimmer treatise: "The 1909 Act neither defined
originality, nor even expressly required that a work be 'original' in
order to command protection. However, the courts uniformly inferred the
requirement from the fact that copyright protection may only be claimed
by 'authors'.... It was reasoned that since an author is 'the ...
creator, originator' it follows that a work is not the product of an
author unless the work is original." Nimmer s 2.01 (footnotes omitted)
But some courts misunderstood the statute. See, e.g.,
Leon v. Pacific Telephone & Telegraph Co., 91 F.2d 484 (CA9
1937); Jeweler's Circular Publishing Co. v. Keystone Publishing Co.,
281 F. 83 (CA2 1922). These courts ignored ss 3 and 4, focusing their
attention instead on s 5 of the Act. Section 5, however, was purely
technical in nature: It provided that a person seeking to register a
work should indicate on the application the type of work, and it listed
14 categories under which the work might fall. One of these categories
was "[b]ooks, including composite and cyclopaedic works, directories,
gazetteers, and other compilations." s 5(a). Section 5 did not purport
to say that all compilations were automatically copyrightable. Indeed,
it expressly disclaimed any such function, pointing out that "the
subject- matter of copyright [i]s defined in section four."
Nevertheless, the fact that factual compilations were mentioned
specifically in s 5 led some courts to infer erroneously that
directories and the like were copyrightable per se, "without any
further or precise showing of original--personal--authorship." Ginsburg
Making matters worse, these courts developed a new
theory to justify the protection of factual compilations. Known
alternatively as "sweat of the brow" or "industrious collection," the
underlying notion was that copyright was a reward for the hard work
that went into compiling facts. The classic formulation of the doctrine
appeared in Jeweler's Circular Publishing Co., 281 F., at 88:
"The right to copyright a book upon which one has expended labor in its
preparation does not depend upon whether the materials which he has
collected consist or not of matters which are publici juris, or whether
such materials show literary skill or originality, either in thought or
in language, or anything more than industrious collection. The man who
goes through the streets of a town and puts down the names of each of
the inhabitants, with their occupations and their street number,
acquires material of which he is the author."
The "sweat of the brow" doctrine had numerous flaws, the
most glaring being that it extended copyright protection in a
compilation beyond selection and arrangement--the compiler's original
contributions--to the facts themselves. Under the doctrine, the only
defense to infringement was independent creation. A subsequent compiler
was "not entitled to take one word of information previously
published," but rather had to "independently wor[k] out the matter for
himself, so as to arrive at the same result from the same common
sources of information." Id., at 88-89 (internal quotations omitted).
"Sweat of the brow" courts thereby eschewed the most fundamental axiom
of copyright law--that no one may copyright facts or ideas. See Miller
v. Universal City Studios, Inc., 650 F.2d, at 1372 (criticizing "sweat
of the brow" courts because "ensur [ing] that later writers obtain the
facts independently ... is precisely the scope of protection given ...
copyrighted matter, and the law is clear that facts are not entitled to
such protection"). Decisions of this Court applying the 1909 Act make
clear that the statute did not permit the "sweat of the brow" approach.
The best example is International News Service v. Associated Press, 248
U.S. 215, 39 S.Ct. 68, 63 L.Ed. 211 (1918). In that decision, the Court
stated unambiguously that the 1909 Act conferred copyright protection
only on those elements of a work that were original to the author.
International News Service had conceded taking news reported by
Associated Press and publishing it in its own newspapers. Recognizing
that s 5 of the Act specifically mentioned " 'periodicals, including
newspapers,' " s 5(b), the Court acknowledged that news articles were
copyrightable. Id., at 234, 39 S.Ct., at 70. It flatly rejected,
however, the notion that the copyright in an article extended to the
factual information it contained: "[T]he news element--the information
respecting current events contained in the literary production--is not
the creation of the writer, but is a report of matters that ordinarily
are publici juris; it is the history of the day." > Ibid.
(FootNote: The Court ultimately rendered judgment for Associated Press
on noncopyright grounds that are not relevant here. See 248 U.S., at
235, 241-242, 39 S.Ct., at 71, 73-74.)
Without a doubt, the "sweat of the brow" doctrine
flouted basic copyright principles. Throughout history, copyright law
has "recognize[d] a greater need to disseminate factual works than
works of fiction or fantasy." Harper & Row, 471 U.S., at 563,
105 S.Ct., at 2232. Accord, Gorman, Fact or Fancy: The Implications for
Copyright, 29 J. Copyright Soc. 560, 563 (1982). But "sweat of the
brow" courts took a contrary view; they handed out proprietary
interests in facts and declared that authors are absolutely precluded
from saving time and effort by relying upon the facts contained in
prior works. In truth, "[i]t is just such wasted effort that the
proscription against the copyright of ideas and facts ... [is] designed
to prevent." Rosemont Enterprises, Inc. v. Random House, Inc., 366 F.2d
303, 310 (CA2 1966), cert. denied 385 U.S. 1009, 87 S.Ct. 714, 17
L.Ed.2d 546 (1967). "Protection for the fruits of such research ... may
in certain circumstances be available under a theory of unfair
competition. But to accord copyright protection on this basis alone
distorts basic copyright principles in that it creates a monopoly in
public domain materials without the necessary justification of
protecting and encouraging the creation of 'writings' by 'authors.' "
Nimmer s 3.04, p. 3-23 (footnote omitted).
"Sweat of the brow" decisions did not escape the attention of the
Copyright Office. When Congress decided to overhaul the copyright
statute and asked the Copyright Office to study existing problems, see
Mills Music, Inc. v. Snyder, 469 U.S. 153, 159, 105 S.Ct. 638, 642, 83
L.Ed.2d 556 (1985), the Copyright Office promptly recommended that
Congress clear up the confusion in the lower courts as to the basic
standards of copyrightability. The Register of Copyrights explained in
his first report to Congress that "originality" was a "basic
requisit[e]" of copyright under the 1909 Act, but that "the absence of
any reference to [originality] in the statute seems to have led to
misconceptions as to what is copyrightable matter." Report of the
Register of Copyrights on the General Revision of the U.S. Copyright
Law, 87th Cong., 1st Sess., p. 9 (H. Judiciary Comm. Print 1961). The
Register suggested making the originality requirement explicit. Ibid.
Congress took the Register's advice. In enacting the
Copyright Act of 1976, Congress dropped the reference to "all the
writings of an author" and replaced it with the phrase "original works
of authorship." 17 U.S.C. s 102(a). In making explicit the originality
requirement, Congress announced that it was merely clarifying existing
law: "The two fundamental criteria of copyright protection [are]
originality and fixation in tangible form.... The phrase 'original
works of authorship,' which is purposely left undefined, is intended to
incorporate without change the standard of originality established by
the courts under the present  copyright statute." H.R.Rep. No.
94-1476, p. 51 (1976) (emphasis added) (hereinafter H.R.Rep.); S.Rep.
No. 94-473, p. 50 (1975), U.S.Code Cong. & Admin.News 1976, pp.
5659, 5664 (emphasis added) (hereinafter S.Rep.). This sentiment was
echoed by the Copyright Office: "Our intention here is to maintain the
established standards of originality...." Supplementary Report of the
Register of Copyrights on the General Revision of U.S. Copyright Law,
89th Cong., 1st Sess., pt. 6, p. 3 (H. Judiciary Comm. Print 1965)
To ensure that the mistakes of the "sweat of the brow"
courts would not be repeated, Congress took additional measures. For
example, s 3 of the 1909 Act had stated that copyright protected only
the "copyrightable component parts" of a work, but had not identified
originality as the basis for distinguishing those component parts that
were copyrightable from those that were not. The 1976 Act deleted this
section and replaced it with s 102(b), which identifies specifically
those elements of a work for which copyright is not available: "In no
case does copyright protection for an original work of authorship
extend to any idea, procedure, process, system, method of operation,
concept, principle, or discovery, regardless of the form in which it is
described, explained, illustrated, or embodied in such work." Section
102(b) is universally understood to prohibit any copyright in facts.
Harper & Row, supra, at 547, 556, 105 S.Ct., at 2223, 2228.
Accord, Nimmer s 2.03[E] (equating facts with "discoveries"). As with s
102(a), Congress emphasized that s 102(b) did not change the law, but
merely clarified it: "Section 102(b) in no way enlarges or contracts
the scope of copyright protection under the present law. Its purpose is
to restate ... that the basic dichotomy between expression and idea
remains unchanged." H.R.Rep., at 57; S.Rep., at 54, U.S.Code Cong.
& Admin.News 1976, p. 5670.
Congress took another step to minimize confusion by
deleting the specific mention of "directories ... and other
compilations" in s 5 of the 1909 Act. As mentioned, this section had
led some courts to conclude that directories were copyrightable per se
and that every element of a directory was protected. In its place,
Congress enacted two new provisions. First, to make clear that
compilations were not copyrightable per se, Congress provided a
definition of the term "compilation." Second, to make clear that the
copyright in a compilation did not extend to the facts themselves,
Congress enacted s 103.
The definition of "compilation" is found in s 101 of the
1976 Act. It defines a "compilation" in the copyright sense as "a work
formed by the collection and assembling of preexisting materials or of
data that are selected, coordinated, or arranged in such a way that the
resulting work as a whole constitutes an original work of authorship"
The purpose of the statutory definition is to emphasize
that collections of facts are not copyrightable per se. It conveys this
message through its tripartite structure, as emphasized above by the
italics. The statute identifies three distinct elements and requires
each to be met for a work to qualify as a copyrightable compilation:
(1) the collection and assembly of pre-existing material, facts, or
data; (2) the selection, coordination, or arrangement of those
materials; and (3) the creation, by virtue of the particular selection,
coordination, or arrangement, of an "original" work of authorship.
"[T]his tripartite conjunctive structure is self-evident, and should be
assumed to 'accurately express the legislative purpose.' " Patry 51,
quoting Mills Music, 469 U.S., at 164, 105 S.Ct., at 645.
At first glance, the first requirement does not seem to
tell us much. It merely describes what one normally thinks of as a
compilation -- a collection of pre-existing material, facts, or data.
What makes it significant is that it is not the sole requirement. It is
not enough for copyright purposes that an author collects and assembles
facts. To satisfy the statutory definition, the work must get over two
additional hurdles. In this way, the plain language indicates that not
every collection of facts receives copyright protection. Otherwise,
there would be a period after "data."
The third requirement is also illuminating. It
emphasizes that a compilation, like any other work, is copyrightable
only if it satisfies the originality requirement ("an original work of
authorship"). Although s 102 states plainly that the originality
requirement applies to all works, the point was emphasized with regard
to compilations to ensure that courts would not repeat the mistake of
the "sweat of the brow" courts by concluding that fact-based works are
treated differently and measured by some other standard. As Congress
explained it, the goal was to "make plain that the criteria of
copyrightable subject matter stated in section 102 apply with full
force to works ... containing preexisting material." H.R.Rep., at 57;
S.Rep., at 55, U.S.Code Cong. & Admin.News 1976, p. 5670.
The key to the statutory definition is the second
requirement. It instructs courts that, in determining whether a
fact-based work is an original work of authorship, they should focus on
the manner in which the collected facts have been selected,
coordinated, and arranged. This is a straightforward application of the
originality requirement. Facts are never original, so the compilation
author can claim originality, if at all, only in the way the facts are
presented. To that end, the statute dictates that the principal focus
should be on whether the selection, coordination, and arrangement are
sufficiently original to merit protection.
Not every selection, coordination, or arrangement will
pass muster. This is plain from the statute. It states that, to merit
protection, the facts must be selected, coordinated, or arranged "in
such a way" as to render the work as a whole original. This implies
that some "ways" will trigger copyright, but that others will not. See
Patry 57, and n. 76. Otherwise, the phrase "in such a way" is
meaningless and Congress should have defined "compilation" simply as "a
work formed by the collection and assembly of preexisting materials or
data that are selected, coordinated, or arranged." That Congress did
not do so is dispositive. In accordance with "the established principle
that a court should give effect, if possible, to every clause and word
of a statute," Moskal v. United States, 498 U.S. 103, 109- 110, 111
S.Ct. 461, 466, 112 L.Ed.2d 449 (1990) (internal quotation marks
omitted), we conclude that the statute envisions that there will be
some fact- based works in which the selection, coordination, and
arrangement are not sufficiently original to trigger copyright
As discussed earlier, however, the originality
requirement is not particularly stringent. A compiler may settle upon a
selection or arrangement that others have used; novelty is not
required. Originality requires only that the author make the selection
or arrangement independently (i.e., without copying that selection or
arrangement from another work), and that it display some minimal level
of creativity. Presumably, the vast majority of compilations will pass
this test, but not all will. There remains a narrow category of works
in which the creative spark is utterly lacking or so trivial as to be
virtually nonexistent. See generally Bleistein v. Donaldson
Lithographing Co., 188 U.S. 239, 251, 23 S.Ct. 298, 300, 47 L.Ed. 460
(1903) (referring to "the narrowest and most obvious limits"). Such
works are incapable of sustaining a valid copyright. Nimmer s 2.01[B].
Even if a work qualifies as a copyrightable compilation,
it receives only limited protection. This is the point of s 103 of the
Act. Section 103 explains that "[t]he subject matter of copyright ...
includes compilations," s 103(a), but that copyright protects only the
author's original contributions--not the facts or information conveyed:
"The copyright in a compilation ... extends
only to the material contributed by the author of such work, as
distinguished from the preexisting material employed in the work, and
does not imply any exclusive right in the preexisting material." s
As s 103 makes clear, copyright is not a tool by which a
compilation author may keep others from using the facts or data he or
she has collected. "The most important point here is one that is
commonly misunderstood today: copyright ... has no effect one way or
the other on the copyright or public domain status of the preexisting
material." H.R.Rep., at 57; S.Rep., at 55, U.S.Code Cong. &
Admin. News 1976, p. 5670. The 1909 Act did not require, as "sweat of
the brow" courts mistakenly assumed, that each subsequent compiler must
start from scratch and is precluded from relying on research undertaken
by another. See, e.g., Jeweler's Circular Publishing Co., 281 F., at
88-89. Rather, the facts contained in existing works may be freely
copied because copyright protects only the elements that owe their
origin to the compiler--the selection, coordination, and arrangement of
In summary, the 1976 revisions to the Copyright Act
leave no doubt that originality, not "sweat of the brow," is the
touchstone of copyright protection in directories and other fact-based
works. Nor is there any doubt that the same was true under the 1909
Act. The 1976 revisions were a direct response to the Copyright
Office's concern that many lower courts had misconstrued this basic
principle, and Congress emphasized repeatedly that the purpose of the
revisions was to clarify, not change, existing law. The revisions
explain with painstaking clarity that copyright requires originality, s
102(a); that facts are never original, s 102(b); that the copyright in
a compilation does not extend to the facts it contains, s 103(b); and
that a compilation is copyrightable only to the extent that it features
an original selection, coordination, or arrangement, s 101.
The 1976 revisions have proven largely successful in
steering courts in the right direction. A good example is Miller v.
Universal City Studios, Inc., 650 F.2d, at 1369-1370: "A copyright in a
directory ... is properly viewed as resting on the originality of the
selection and arrangement of the factual material, rather than on the
industriousness of the efforts to develop the information. Copyright
protection does not extend to the facts themselves, and the mere use of
information contained in a directory without a substantial copying of
the format does not constitute infringement" (citation omitted).
Additionally, the Second Circuit, which almost 70 years ago issued the
classic formulation of the "sweat of the brow" doctrine in Jeweler's
Circular Publishing Co., has now fully repudiated the reasoning of that
decision. See, e.g., Financial Information, Inc. v. Moody's Investors
Service, Inc., 808 F.2d 204, 207 (CA2 1986), cert. denied, 484 U.S.
820, 108 S.Ct. 79, 98 L.Ed.2d 42 (1987); Financial Information, Inc. v.
Moody's Investors Service, Inc., 751 F.2d 501, 510 (CA2 1984) (Newman,
J., concurring); Hoehling v. Universal City Studios, Inc., 618 F.2d
972, 979 (CA2 1980). Even those scholars who believe that "industrious
collection" should be rewarded seem to recognize that this is beyond
the scope of existing copyright law. See Denicola 516 ("[T]he very
vocabulary of copyright is ill suited to analyzing property rights in
works of nonfiction"); id., at 520-521, 525; Ginsburg 1867, 1870.
There is no doubt that Feist took from the white pages
of Rural's directory a substantial amount of factual information. At a
minimum, Feist copied the names, towns, and telephone numbers of 1,309
of Rural's subscribers. Not all copying, however, is copyright
infringement. To establish infringement, two elements must be proven:
(1) ownership of a valid copyright, and (2) copying of constituent
elements of the work that are original. See Harper & Row, 471
U.S., at 548, 105 S.Ct., at 2224. The first element is not at issue
here; Feist appears to concede that Rural's directory, considered as a
whole, is subject to a valid copyright because it contains some
foreword text, as well as original material in its yellow pages
advertisements. See Brief for Petitioner 18; Pet. for Cert. 9.
The question is whether Rural has proved the second
element. In other words, did Feist, by taking 1,309 names, towns, and
telephone numbers from Rural's white pages, copy anything that was
"original" to Rural? Certainly, the raw data does not satisfy the
originality requirement. Rural may have been the first to discover and
report the names, towns, and telephone numbers of its subscribers, but
this data does not " 'ow[e] its origin' " to Rural. Burrow-Giles, 111
U.S., at 58, 4 S.Ct., at 281. Rather, these bits of information are
uncopyrightable facts; they existed before Rural reported them and
would have continued to exist if Rural had never published a telephone
directory. The originality requirement "rule[s] out protecting ...
names, addresses, and telephone numbers of which the plaintiff by no
stretch of the imagination could be called the author." Patterson
& Joyce 776.
Rural essentially concedes the point by referring to the
names, towns, and telephone numbers as "preexisting material." Brief
for Respondent 17. Section 103(b) states explicitly that the copyright
in a compilation does not extend to "the preexisting material employed
in the work."
The question that remains is whether Rural selected,
coordinated, or arranged these uncopyrightable facts in an original
way. As mentioned, originality is not a stringent standard; it does not
require that facts be presented in an innovative or surprising way. It
is equally true, however, that the selection and arrangement of facts
cannot be so mechanical or routine as to require no creativity
whatsoever. The standard of originality is low, but it does exist. See
Patterson & Joyce 760, n. 144 ("While this requirement is
sometimes characterized as modest, or a low threshold, it is not
without effect") (internal quotation marks omitted; citations omitted).
As this Court has explained, the Constitution mandates some minimal
degree of creativity, see The Trade-Mark Cases, 100 U.S., at 94; and an
author who claims infringement must prove "the existence of ...
intellectual production, of thought, and conception." >
Burrow-Giles, supra, 111 U.S., at 59-60, 4 S.Ct., at 281-282.
The selection, coordination, and arrangement of Rural's
white pages do not satisfy the minimum constitutional standards for
copyright protection. As mentioned at the outset, Rural's white pages
are entirely typical. Persons desiring telephone service in Rural's
service area fill out an application and Rural issues them a telephone
number. In preparing its white pages, Rural simply takes the data
provided by its subscribers and lists it alphabetically by surname. The
end product is a garden-variety white pages directory, devoid of even
the slightest trace of creativity.
Rural's selection of listings could not be more obvious:
It publishes the most basic information--name, town, and telephone
number--about each person who applies to it for telephone service. This
is "selection" of a sort, but it lacks the modicum of creativity
necessary to transform mere selection into copyrightable expression.
Rural expended sufficient effort to make the white pages directory
useful, but insufficient creativity to make it original.
We note in passing that the selection featured in
Rural's white pages may also fail the originality requirement for
another reason. Feist points out that Rural did not truly "select" to
publish the names and telephone numbers of its subscribers; rather, it
was required to do so by the Kansas Corporation Commission as part of
its monopoly franchise. See 737 F.Supp., at 612. Accordingly, one could
plausibly conclude that this selection was dictated by state law, not
Nor can Rural claim originality in its coordination and
arrangement of facts. The white pages do nothing more than list Rural's
subscribers in alphabetical order. This arrangement may, technically
speaking, owe its origin to Rural; no one disputes that Rural undertook
the task of alphabetizing the names itself. But there is nothing
remotely creative about arranging names alphabetically in a white pages
directory. It is an age-old practice, firmly rooted in tradition and so
commonplace that it has come to be expected as a matter of course. See
Brief for Information Industry Association et al. as Amici Curiae 10
(alphabetical arrangement "is universally observed in directories
published by local exchange telephone companies"). It is not only
unoriginal, it is practically inevitable. This time-honored tradition
does not possess the minimal creative spark required by the Copyright
Act and the Constitution.
We conclude that the names, towns, and telephone numbers
copied by Feist were not original to Rural and therefore were not
protected by the copyright in Rural's combined white and yellow pages
directory. As a constitutional matter, copyright protects only those
constituent elements of a work that possess more than a de minimis
quantum of creativity. Rural's white pages, limited to basic subscriber
information and arranged alphabetically, fall short of the mark. As a
statutory matter, 17 U.S.C. s 101 does not afford protection from
copying to a collection of facts that are selected, coordinated, and
arranged in a way that utterly lacks originality. Given that some works
must fail, we cannot imagine a more likely candidate. Indeed, were we
to hold that Rural's white pages pass muster, it is hard to believe
that any collection of facts could fail.
Because Rural's white pages lack the requisite
originality, Feist's use of the listings cannot constitute
infringement. This decision should not be construed as demeaning
Rural's efforts in compiling its directory, but rather as making clear
that copyright rewards originality, not effort. As this Court noted
more than a century ago, " 'great praise may be due to the plaintiffs
for their industry and enterprise in publishing this paper, yet the law
does not contemplate their being rewarded in this way.' " Baker v.
Selden, 101 U.S., at 105.
The judgment of the Court of Appeals is
Justice BLACKMUN concurs in the judgment.